Neal, Willy Edward v. State

Affirmed and Memorandum Opinion filed January 12, 2006 Affirmed and Memorandum Opinion filed January 12, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-04-01002-CR ____________ WILLY EDWARD NEAL, Appellant V. THE STATE OF TEXAS, Appellee ______________________________________________________________ On Appeal from the 209th District Court Harris County, Texas Trial Court Cause No. 975,174 ______________________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Willy Edward Neal was charged with possession of cocaine. After the trial court found him guilty, the court sentenced him to twenty-five years confinement in the Texas Department of Criminal JusticeBInstitutional Division. In his sole issue, appellant argues the trial court improperly enhanced his sentence by considering prior convictions that were not alleged in the indictment. Because appellant was given sufficient notice of the State=s intent to prove enhancements to his sentence, we affirm. I. Factual and Procedural Background On January 23, 2004, Appellant was arrested and charged with possession of more than one and less than four grams of cocaine. The grand jury returned an indictment on April 26, 2004 that included two enhancement paragraphs for prior felony convictions. The enhancement paragraphs read as follows: Before the commission of the offense alleged above, (hereinafter styled the primary offense), on March 25, 1997 in Cause No. 737915, in the 248th District Court of Harris County, Texas, the Defendant was convicted of the felony of possession within intent to deliver a controlled substance. Before the commission of the primary offense, and after the conviction in Cause No. 737915 was final, the Defendant committed the felony of delivery of a controlled substance and was finally convicted of that offense on January 18, 2000, in Cause No. 549953, in the 248th District Court of Harris County, Texas. Although appellant had been convicted of the two offenses, the indictment misidentified the dates of the convictions.[1] Accordingly, on July 14, 2004, the State filed a motion to amend the indictment to make the correction.[2] The trial court granted the motion, but a new indictment reflecting the changes was never issued. The case was set for trial on October 5, 2004. Appellant elected a trial to the bench and at its conclusion, the trial court found him guilty as charged. Before appellant was arraigned in the punishment phase of the trial, appellant=s counsel objected to the inclusion of the modified enhancement paragraphs that were never incorporated into a new indictment. The trial court overruled the objection. After finding both enhancements Atrue,@ the trial court sentenced appellant to twenty-five years in prison. II. Discussion In his sole issue, appellant argues that the trial court=s grant of the State=s motion to amend the indictment did not constitute an actual amendment of the indictment and accordingly, asks us to remand and instruct the trial court to render a new sentence.[3] Because it is not necessary that enhancement paragraphs be included in the indictment, and because appellant had adequate notice of the State=s intention to introduce evidence of prior felony convictions, we overrule appellant=s sole issue. Although an accused has the right to be informed that the State seeks enhancement of the punishment for the charged offense, the notice does not need to be pleaded in the indictment because it is not an element of the primary offense. Calton v. State, __ S.W.3d __, __ (Tex. Crim. App. 2005) (en banc) (citing Brooks v. State, 957 S.W.2d 30, 34 (Tex. Crim. App. 1997) (en banc)). Texas law merely requires that the State plead the enhancements Ain some form.@ Brooks, 957 S.W.2d at 34. A motion to amend the indictment is a valid pleading for this purpose, and the trial court=s grant of the motion constitutes requisite notice to the defendant. Id. at 34. Such notice, however, must enable the defendant Ato find the record and make preparation for a trial of the question [of] whether he is the convict named therein.@ Hollins v. State, 571 S.W.2d 873, 875 (Tex. Crim. App. 1978) (citing Morman v. State, 127 Tex. Crim. 264, 265, 75 S.W.2d 887, 887 (1934)); see also Sears v. State, 91 S.W.2d 451, 454B55 (Tex. App.CBeaumont 2002, no pet.) (finding less than one full business day and two weekend days to be inadequate notice); Hudson v. State, 145 S.W.3d 323, 325 (Tex. App.CFort Worth 2005, no pet. h.) (holding notice provided six days before the punishment phase was untimely). Here, neither the form of the pleading nor the timeliness of the notice was defective. The Court of Criminal Appeals established in Brooks that a motion to amend an indictment is a pleading sufficient to provide notice. Moreover, here, the trial court granted the State=s motion nearly three months prior to trial.[4] And, at the punishment hearing, appellant=s counsel readily conceded, Athe State gave us notice of the language prior to trial.@ Accordingly, we hold the trial court did not err and overrule appellant=s sole issue. For the foregoing reasons, we affirm the judgment of the trial court. /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed January 12, 2006. Panel consists of Justice Fowler, Edelman, and Guzman. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Appellant was convicted of delivery of a controlled substance on January 18, 1990, in Cause No. 549953. He was convicted of possession of a controlled substance with intent to deliver on March 25, 1997, in Cause No. 737915. (Both convictions were in the 248th District Court of Harris County, as stated.) [2] The motion to amend also rearranged the paragraphs so they appeared in sequential order. [3] Cocaine is a controlled substance identified in Penalty Group 1 of the Texas Controlled Substances Act. Tex. Health & Safety Code Ann. ' 481.102(3)(D) (Vernon 2005). Possession of more than one but fewer than four grams of a substance in this category is a third degree felony. Tex. Health & Safety Code Ann. ' 481.115(c) (Vernon 2005). Absent any prior felony convictions, a third degree felony is punishable by imprisonment in the institutional division for a period ranging from two to ten years. Tex. Pen. Code Ann. ' 12.34 (Vernon 2005). A showing of two prior final felony convictions in which the second conviction occurred after the first conviction became final, however, allows for a life sentence, or for a prison term of twenty-five to ninety-nine years. Tex. Pen. Code Ann. ' 12.42(d) (Vernon 2005). [4] The motion to amend the indictment correctly described the offense, dates, cause numbers, and venue of appellant=s prior convictions.